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10/27/89 Kathleen Mcgrath Et Al., v. Chicago and North Western

October 27, 1989





546 N.E.2d 670, 190 Ill. App. 3d 276, 137 Ill. Dec. 725 1989.IL.1704

Appeal from the Circuit Court of Cook County; the Hon. Jerome Lerner, Judge, presiding.


JUSTICE QUINLAN delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.


Kathleen and James McGrath, plaintiffs below and appellants here, sued Chicago and North Western Transportation Co. for damages from a collision between two cars. This accident occurred on a public road which had been partly blocked while C&N performed repair work. After the jury returned a verdict for the defendant, the plaintiffs filed a motion for a judgment n.o.v. on liability and a new trial on damages or, in the alternative, a new trial on all issues. The trial Judge denied this motion.

The McGraths now appeal, asserting they were deprived of a fair trial and are entitled to a new trial because: (1) the trial court should have declared a mistrial after the defense counsel asked a question about Kathleen McGrath's settlement with her father, James McGrath; and (2) the trial court refused to allow jury instructions on statutory sections that prohibit unauthorized signs and obstructions on highways. On appeal, the McGraths ask that a new trial be granted.

On July 30, 1982, two workers from C&N performed emergency road repairs on a train gate at Euclid Avenue in Arlington Heights. This gate needed immediate repair because it protected the intersection of a busy street and a heavily used commuter rail track. During part of the repair work, the workers blocked the westbound side of Euclid Avenue with their truck, marked the area with cones and flares, and rerouted traffic in both directions down the open eastbound side.

While Euclid Avenue was rerouted, James McGrath proceeded east on Euclid, in the inside lane temporarily reserved for westbound traffic. Another driver, Andrew Bartoli, was driving east in the outside lane, which now carried all of the eastbound cars except McGrath's. Bartoli then turned left from his outside lane. McGrath, driving east on the inside, or temporary westbound lane, broadsided Bartoli.

James McGrath and his passenger, his daughter Kathleen, sued Bartoli and C&N. The McGraths claimed damages to James' car and injuries to Kathleen. The two defendants filed counterclaims against James McGrath and cross-claims against each other. Additionally, C&N filed a third-party action against the company whose employee damaged the gate. All of these claims have been disposed of by court action or settlement except one. The action that remained was that filed by the McGraths against C&N, which is now the only defendant.

At trial, C&N called James McGrath as an adverse witness. C&N had already cross-examined McGrath after the plaintiffs' direct. On the defendant's direct, C&N asked a question about a $5,000 settlement between James McGrath and his daughter. The McGraths' counsel objected three times while C&N persisted in asking the entire question. In chambers, the C&N counsel explained that the purpose of the settlement question was to show bias by James McGrath, who had been a potential defendant in a third-party action by C&N. Since McGrath had settled, he could inflate Kathleen's injury claims without fear that he might have to pay part of the final damages himself. The trial Judge stated that this matter should have been discussed in chambers, not introduced in a question before the jury.

The McGraths' counsel then moved for a default and judgment against the defendant. At that time, the trial Judge said he would reserve a "motion on a mistrial." The McGraths' counsel did not press the point or ask for an immediate ruling on the mistrial motion. When the parties returned to the courtroom, the trial Judge sustained the McGraths' objection to the question about settlement and instructed the jury to disregard that question.

The McGraths also asked the court to take judicial notice of some provisions from the Illinois Commerce Commission, the Manual on Uniform Traffic Control Devices, and section 11-1416 from the Illinois Vehicle Code (Motor Vehicle Code) (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-1416). The trial Judge refused to do so on the grounds that the cited provisions did not relate to the evidence presented in the case.

At the end of the trial, the McGraths asked for jury instructions based on sections 11-310 and 11-1303 of the Illinois revised statutes. (Ill. Rev. Stat. 1981, ch. 95 1/2, pars. 11-310, 11-1303.) Section 11-310 makes it a misdemeanor to display any "unauthorized sign, signal [or] marking" on any highway. (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-310.) Section 11-1303 provides that "[s]topping, standing or parking" is "prohibited in specified places." (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-1303.) As ...

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